Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John
W. McIntosh, Assistant Deputy Attorney General B. Allen Bullard, and Assistant
Attorney General William Bryan Dukes, all of Columbia, for Petitioner.

John Stafford Bryant, of Bryant, Fanning and Shuler, of Orangeburg, for Respondent.

JUSTICE
BURNETT: We granted a writ of certiorari to review the decision of the
Post-Conviction Relief (“PCR”) judge granting Quentin Anderson (“Anderson”)
relief. We reverse.

FACTS

Anderson was indicted and convicted of assault and
battery with intent to kill and received a twenty-year sentence. Janice Jenkins
Glover (“Glover”), Anderson’s former girlfriend, testified at trial Anderson
had threatened to kill her or the other man if he saw her with another man.
Glover testified she was at a club on the night of the crime talking to the
victim. Anderson entered the club, and Glover walked away from the victim to
the bar.

Glover testified Anderson approached her and slapped
her, knocking her to the floor. As she left the club she heard a gunshot.
When she heard a second gunshot, she saw Anderson outside the club with a gun.
Three witnesses corroborated Glover’s testimony, including the victim who positively
identified Anderson as the man who shot him.

The Court of Appeals affirmed his conviction. State v. Anderson, Op.
No. 98-UP-510 (Ct. App. Filed November 23, 1998). A petition for a writ of
certiorari was not filed with this Court.

Anderson subsequently filed a petition for PCR alleging appellate counsel provided
ineffective assistance by failing to petition for a writ of certiorari from
this Court. The PCR court agreed noting that he would have prevailed on an
appeal to this Court under State v. Cutro, 332 S.C. 100, 504 S.E.2d 324
(1998), a decision released subsequent to the Court of Appeals decision in Anderson’s
case.

ISSUE

Did the PCR court err in concluding appellate counsel provided ineffective
assistance by not petitioning for a writ of certiorari to this Court to determine
if Anderson’s threat to and assault of Glover were properly admitted at trial?

To prove prejudice, the applicant must show that, but for counsel’s errors,
there is a reasonable probability he would have prevailed on appeal. Strickland,
supra; Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997).
That is, Anderson must prove prejudice by showing he would have prevailed on
appeal had a writ been filed by counsel and granted by this Court. SeeButler, supra.

Assuming, arguendo, appellate counsel was deficient in not seeking certiorari
from this Court, Anderson has failed to prove he was prejudiced by counsel’s
inaction. Anderson asserts he would have prevailed on appeal because his threatening
statement to Glover and testimony of his slapping her at the bar were inadmissible
prior bad acts. See Rule 404, SCRE; State v. Lyle, 125 S.C. 406,
118 S.E. 803 (1923). We disagree.

Rule 404, SCRE, the modern expression of the Lyle rule, excludes “evidence
of other crimes, wrongs, or acts” offered to “prove the character of a person
in order to show action in conformity therewith.” Rule 404(b), SCRE. The rule
creates an exception when the testimony is offered to show motive, identity,
the existence of a common scheme or plan, the absence of mistake or accident,
or intent. Id.

Evidence of other crimes is admissible under the res gestae
theory when the other actions are so intimately connected with the crime charged
that their admission is necessary for a full presentation of the case. State
v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996). The evidence
of Anderson’s slapping Glover is part of the res gestae of the crime. The assault,
which took place moments before the shooting, provides the context of the shooting,
along with Anderson’s earlier threatening statement. A full presentation of
the crime necessarily includes Anderson’s threat, testimony Anderson saw Glover
talking to a man, Anderson’s assaulting Glover, and culminating in the shooting
of the victim.

Neither Anderson’s threat
nor his assault upon Glover are prior bad acts barred by Rule 404. Anderson,
unable to prove the inadmissibility of the evidence, would not have prevailed
on appeal to this Court. He is, therefore, unable to prove prejudice.